Citation Nr: 0503732
Decision Date: 02/11/05 Archive Date: 02/22/05
DOCKET NO. 03-19 963 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether forfeiture of the veteran's rights to Department of
Veterans Affairs (VA) benefits under the provisions of 38
U.S.C.A. § 6103(a) (West 2002) is proper.
REPRESENTATION
Appellant represented by: Oliver V. Yabut, Attorney at
Law
ATTORNEY FOR THE BOARD
Joseph A. Rose, Associate Counsel
INTRODUCTION
The veteran had served active duty with Philippine Scouts
from February 1941 to June 1946, including as a recognized
prisoner-of-war (POW) from April 1942 to August 1942.
In a June 2002 administrative decision from Manila,
Philippines, the Department of Veterans Affairs (VA) Regional
Office (RO) determined that the evidence warranted submission
of the claimant for consideration of forfeiture for fraud
under the provisions of 38 U.S.C.A. § 6103(a). In March
2003, a Forfeiture Decision found that the veteran forfeited
all rights, claims, and benefits to which he might otherwise
be entitled under laws administered by VA.
FINDING OF FACT
1. No corroborative evidence showed that the veteran
knowingly made false or fraudulent statements on a joint
affidavit dated in October 2000.
2. The evidence of record does not establish beyond a
reasonable doubt that the veteran knowingly made or caused to
be made false or fraudulent statements concerning a claim for
benefits.
CONCLUSION OF LAW
Forfeiture of the veteran's rights to Department of Veterans
Affairs (VA) benefits under the provisions of 38 U.S.C.A. §
6103(a) (West 2002) is improper. 38 U.S.C.A. § 6103(a); 38
C.F.R. §§ 3.900, 3.901 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to notify and assist
The President signed into law the Veterans Claims Assistance
Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002). The legislation provides,
among other things, for notice and assistance to claimants
under certain circumstances. VA has issued final rules to
amend adjudication regulations to implement the provisions of
the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a). These regulations establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits.
The Board has considered the issue on appeal with respect to
the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§
5100 et. seq. (West 2002). Given the favorable outcome set
forth below, no conceivable prejudice to the veteran could
result from this adjudication. See Bernard v. Brown, 4 Vet.
App. 384, 393 (1993). The additional delay in the
adjudication of this issue would not be justified. In other
words, the veteran will not be prejudiced by the Board
proceeding to a decision in this matter since the outcome
represents a reversal of the forfeiture decision as explained
below. In addition, the Board finds nothing in the new
legislation or implementing regulations which affects the
veteran's ability to voluntarily withdraw issues from
appellate status.
The veteran served as in the Philippine Scouts from February
1941 to June 1946 including as a recognized POW from April
1942 to August 1942. In a December 2000 rating decision, the
RO granted individual unemployability benefits (TDIU),
effective March 16, 2000. He is service connected for
residuals of a shell fragment wound of the left shoulder (20
percent disabling) and arteriosclerotic heart disease (60
percent disabling).
Review of the record shows that the veteran and a person
herein named M.N. signed a joint affidavit dated in October
2000. The joint affidavit was concerning another veteran,
C.R. Both M.N. and the veteran attested that they personally
knew that C.R. was a World War II veteran who saw action in
Bataan, that he was a member of Headquarters 2nd Camp
Complement with a rank of Private with ASN [redacted], and that
they happen to know these facts because they all fought
together in Bataan.
Following receipt of the joint affidavit, it appears that RO
began a field investigation into the claims asserted by C.R.
In a September 2001 Field Report, the investigator included
four deposition transcripts, one each from the veteran, C.R.,
M.N, and one from R.N.
In C.R.'s deposition, he admitted to having a pending claim
before VA regarding his POW status. He stated that his
children sought witnesses to attest to his service, including
preparing the joint affidavit of M.N. and the veteran. He
never spoke to M.N. or the veteran concerning the joint
affidavit or being a witness, nor did he ever read the joint
affidavit.
R.N.'s deposition noted that that C.R. approached him about
being a witness to his service, including POW status;
however, he declined, as he was not sure that C.R. was a POW.
M.N.'s deposition indicated that he was approached by C.R.
He did not read or understand the joint affidavit, but signed
it. He just signed it because he wanted to help C.R. He
knew that C.R. served in the war, but was unaware of his
branch of service, nor his POW status. He also could not
attest to whether C.R. saw action in Bataan, as he himself
was not there. M.N. did not serve until after the war as a
Philippine Scout.
In the veteran's deposition, he indicated in pertinent part
that he knew C.R. since his childhood. He did not see C.R.
at Camp O'Donnell, but recalled hearing his name at roll call
while he was in camp. As for the joint affidavit, he
remembered two ladies who came to him and requested his
signature on the affidavit. They told him that they wanted
to help C.R. obtain VA benefits. He was unable to read the
affidavit as his vision was already impaired for two years
due to cataracts. The veteran stated that he knew C.R. was a
former Philippine Army member, but did not know his
involvement with the USAFFE or with the Philippine Scout. He
also did not know C.R.'s membership with the Headquarters 2nd
Camp Complement. The contents of the affidavit were not
explained to him, but he signed it to help C.R. obtain VA
benefits.
Based upon the above information, in a June 2002
administrative decision from Manila, Philippines, the RO
determined that the evidence warranted submission of whether
the veteran presented false and material evidence in the
affidavit. The RO determined that the statements from the
October 2000 joint affidavit, specifically that the veteran
knew C.R. as member of the Headquarters 2nd Camp Complement
with a rank of Private with ASN [redacted] because he fought
together with C.R. in Bataan during World War II, were
material and false. The RO recommended that the matter be
presented to the Chief Attorney for forfeiture consideration
under 38 U.S.C.A. § 6103(a). In a March 2003 Forfeiture
Decision, it was determined that based upon the above facts,
the veteran had forfeited all rights, claims, and benefits to
which he might otherwise be entitled under laws administered
by VA. The veteran appealed this determination.
Under 38 U.S.C.A. § 6103(a), any person who knowingly makes
or causes to be made or conspires, combines, aids, or assists
in, agrees to, arranges for, or in any way procures the
making or presentation of a false or fraudulent affidavit,
declaration, certificate, statement, voucher, or paper,
concerning any claim for benefits under any of the laws
administered by the Secretary, shall forfeit all rights,
claims, and benefits under all laws administered by the
Secretary. Fraud is defined as an act committed in
perpetration of one of the above-listed actions. See 38
C.F.R. § 3.901 (2004).
A forfeiture action is an adversarial process initiated by
VA. Such an adversarial process requires the application of
a "beyond a reasonable doubt standard" to declare a
forfeiture. See Trilles v. West, 13 Vet. App. 314, 320-22,
326-27 (2000). The CAVC has stated that such a standard of
proof is much higher than the typical claims adjudication
standard. In Trilles, 13 Vet. App. at 327, the CAVC pointed
out that the "beyond a reasonable doubt" standard is a
higher standard of proof than the "clear and unmistakable
evidence (obvious or manifest)" standard required to rebut
the presumption of aggravation under 38 C.F.R. § 3.306(b) or
the "clear and convincing evidence" standard set forth at
38 C.F.R. § 3.343(c) required to show actual employability in
reducing a rating of 100 percent.
The VA must determine whether the evidence establishes beyond
a reasonable doubt that the appellant knowingly made or
caused to be made false or fraudulent statements concerning a
claim for benefits. The determination of whether the
appellant knowingly submitted false or fraudulent evidence to
VA is a question of fact. See Macarubbo v. Gober, 10 Vet.
App. 388 (1997).
Upon review, the forfeiture proceedings raised by VA were
based solely upon the assertion in the October 2000 joint
affidavit that the C.R. was a member of Headquarters 2nd Camp
Complement with a rank of Private with ASN [redacted] and that
the veteran knew this because they fought together in Bataan
during the war. The only pertinent evidence against the
veteran is the October 2000 joint affidavit and his
deposition in July 2001 before a field investigator.
The October 2000 joint affidavit and his deposition in July
2001 clearly demonstrate inconsistency in statements. In the
October 2000 joint affidavit, the veteran asserts knowledge
of C.R.'s service in the Headquarters 2nd Camp Complement,
while in the July 2001 deposition, he stated that he knew
C.R. since childhood, that C.R. was in the Philippine Army,
and he heard C.R.'s name called at his POW camp. However, he
denied knowledge of C.R.'s service in the Headquarters 2nd
Camp Complement and that he was at Bataan. The RO asserts
that these inconsistencies amount to fraud; however, there is
no corroborating evidence that he knowingly made the false
statement and certainly the evidence of record does not
demonstrate that the veteran knowingly made the false
statement beyond a reasonable doubt. In his deposition, the
veteran explained that due to his vision impairment, he could
not read the affidavit he signed and the contents of the
joint affidavit were not explained to him. Additionally, the
veteran attested that his memory is not clear and he easily
becomes confused. However, when given an opportunity to
address the statements in question from the joint affidavit
to the field examiner, he refuted and corrected them in his
deposition. Of the remaining three depositions in the
record, there is no evidence indicating that the veteran
knowingly submitted a false or fraudulent affidavit.
Evidence of record includes a June 2000 compensation
examination, which shows age-related cognitive decline,
atherosclerotic heart disease, duodenal diverticulum,
arthritis of the left shoulder, and positive lens opacities
with positive arcus senilis bilaterally. Accordingly, the
veteran's statements regarding his reduced vision and mental
confusion are credible.
Given the veteran's severe mental and physical impairments
(TDIU since March 2000) including a visual impairment, the
veteran's actual knowledge of C.R. and some of his
activities, and lack of corroborative evidence demonstrating
such specific knowledge that his statements were false, the
Board finds that the veteran's actions in signing the
affidavit falls short of knowingly making or causing a fraud
beyond a reasonable doubt.
It is also noted in his deposition that he signed the
affidavit to help C.R. obtain VA benefits. The fact that he
was trying to assist C.R. is not a motive to fraud. There is
nothing fraudulent in wanting to assist a claimant with a
claim. However, when asked about the facts described in the
affidavit, he refuted those statements in his deposition,
despite the harm it may have done to C.R.'s VA claims. In
addition, there is no evidence that the veteran made any
personal gain as a result of signing the affidavit. In
short, there is no corroborative evidence showing that he in
fact knowingly made or caused a fraud or any evidence
demonstrating a motive to commit fraud.
In prosecuting this claim, probative evidence in this case
would have been statements, deposition, or affidavits from
those who personally knew or witnessed the veteran's signing
of the affidavit, particularly the notary. Here, no such
evidence is of record. In sum, there is insufficient
evidence to demonstrate beyond a reasonable doubt that the
veteran knowingly made or caused to be made a false or
fraudulent affidavit. Thus, the evidence does not meet the
"beyond a reasonable doubt" standard to demonstrate
forfeiture under 38 U.S.C.A. § 6103(a). As for the veteran,
the Board hopes that he will show better judgment before
attesting to facts before VA than he did when he signed the
October 2000 joint affidavit.
ORDER
Forfeiture of the veteran's rights to VA benefits under the
provisions of 38 U.S.C.A. § 6103(a) (West 2002) is improper;
Reinstatement of benefits is ordered under the guidelines of
pertinent VA regulations and laws.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs